rape narratives, rape silences- sexual violence and judicial testimony in colonial guatemala...

8/19/2019 Rape Narratives, Rape Silences- Sexual Violence and Judicial Testimony in Colonial Guatemala 31.3.Komisaruk

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Biography, Volume 31, Number 3, Summer 2008, pp. 369-396 (Article)

DOI: 10.1353/bio.0.0028

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Biography 31.3 (Summer 2008) © Biographical Research Center

RAPE NARRATIVES, RAPE SILENCES:

SEXUAL VIOLENCE AND JUDICIAL TESTIMONY

IN COLONIAL GUATEMALA

CATHERINE KOMISARUK

One of the challenges for historians studying Latin American societies is thatuntil recent generations, most of the population did not know how to write.There were of course literate circles in Ibero-America in past centuries, includ-ing people who kept government records and business correspondence, as wellas those who wrote great works of fiction, drama, and poetry. But beyond theso-called “chroniclers” of the conquest era, few kept diaries or left memoirs.Traditional histories about colonial Latin America emphasized elite politicalconcerns and financial affairs, while literary studies have focused heavily onthe writings of European-born priests and travelers in what was, to them, anew world. In the second half of the twentieth century, though, a new set ofhistorical concerns sent many researchers looking for alternative sources. Therise of social history and “the new cultural history”—that is, history of non-elite cultural forms—has changed the way Latin American history is studiedby scholars in the region as well as those in the anglophone context. In the

past generation, we have been seeking texts that would reveal the experiencesand consciousness of a largely illiterate population.

One type of source that has proven especially fruitful in this project is judicial records. The Spanish colonial judicial system allowed people of allsocial statuses access to litigation, providing attorneys to represent the poor.The government employed notaries to serve as court reporters, transcribingoral testimonies in both the ecclesiastic and secular courts. In effect, the courts were collaborating with an otherwise somewhat disenfranchised population

in the production of these recorded narratives. The collaboration created aform of experience-narrative by people who could not write—plaintiffs, de-fendants, and witnesses who told their stories before the colonial magistrates


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370 Biography 31.3 (Summer 2008)

and notaries. Because the purpose of judicial proceedings was essentially tosubstantiate or negate a given accusation, the judicial testimonies were meant

to tell some specific experience or circumstances of the plaintiff, not to be anarc of the whole life. Yet the records of these experience-narratives often re-veal remarkable details about the lives of non-literate subjects.

Thousands of such court records have been preserved in public archivesin many parts of Spanish America. In recent years historians have begun totap this body of documents for the narratives of individuals who left noth-ing in their own writing. Research in court records has become an importanttrend in current scholarship on colonial Spanish America.

Concurrently, the historiography on Latin America has seen a blossom-ing of studies on women, gender, and sexuality. Indeed, various kinds of ju-dicial records have been a source of data for much of this scholarship, sincethe detailed depositions recorded in the Hispanic judicial systems reveal nu-merous aspects of society and daily life.1 Given that court records inher-ently deal with conflicts, they are particularly rich with information aboutsocial transgressions. In contrast to legal codes and religious doctrinal writ-ings, which convey ideologies and prescriptions for behavior, court recordsdisclose some of the realities of people’s actions. In fact, a growing body of

historiography has focused on crime and social transgressions specifically.Part of this trend has been a stream of books on riots and rebellions—eventsthat typically generated a spate of trial records when the rebels were caught.2 A related stream has focused on gender and sexuality, using litigation recordsto analyze expectations and behaviors within marriage and sexual life. Mari-tal violence, illicit unions, witchcraft, disputed betrothals, and prenuptialbreakups have been highlighted in these studies.3

Despite these concurrent emphases on crime and sexuality, sexual vio-

lence has been very scarce in the scholarship on Latin American history.4

Thisscarcity is especially paradoxical, since the new scholarship on women’s his-tory (and the closely related histories of gender and sexuality) grows out ofthe same feminist movements of the late twentieth century that have also de-manded increased recognition of sexual violence in modern societies.

This article examines testimonies about sexual violence that I have foundin the secular court records of late colonial Guatemala. It focuses on the pe-riod from 1773, when a ruinous earthquake prompted the crown to move itsregional capital to a new site (present-day Guatemala City), to 1821, whichmarked independence from Spain. The cases are drawn from the archives ofthe Audiencia (High Court) of colonial Spanish Central America, and fromthe crown’s local criminal courts in Guatemala City, which was the seat ofthe Audiencia. Geographically, the Audiencia’s jurisdiction encompassed the


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Komisaruk, Rape Narratives, Rape Silences 371

area that now comprises Central America, plus today’s Mexican state of Chia-pas. But most private appellants who came to the Audiencia were from areas

lying within today’s Guatemala, with some occasional cases coming from areasin today’s El Salvador, Honduras, and Nicaragua.5

My analysis suggests that sexual violence tended to be disregarded or dis-placed by colonial-era attitudes and judicial practices. These mentalidades andlegal structures shaped people’s opportunities to tell their stories for the writ-ten record, and court procedures partly shaped the content of the testimoniespeople gave. Sharon Block has shown that in early Anglo America, “commu-nity beliefs about who was or was not capable of rape shaped the ultimate cat-egorization of a sexual act” (13). I argue that in Spanish America, communityattitudes determined what was or was not categorized as a criminal sexual of-fense. These attitudes, in turn, were molded not only by the nature of the actitself, but also by the social positions of both aggressor and victim. Variousfactors—ethnicity, class, age, gender, employment, social connections, andmarital status—determined whether and how an act of sexual violence wouldenter the record. These factors mattered at several stages: first in the decisionby victims or their relatives to bring complaints to the authorities, then in thecourts’ willingness to try cases, and finally in the ways the jurists considered

the charges. Even the outcomes prescribed in legal codes varied according tothe social position of defendant and plaintiff.

Thus, even though colonial Spanish ideology and judicial practice facili-tated the recording of thousands of narratives by a remarkable range of in-dividuals, certain kinds of outcries were stifled. The social contexts and legalprocesses in which judicial testimonies were produced in effect limited theircontent and, ultimately, their legal import. In their collaboration, the courtsand the individuals who testified were not equals. Through an examination

of the “unequal” contexts and processes of record production, I argue thatthe judicial system’s treatment of sexual offenses (and its failure to recognizesexual offenses) has partly occluded our study of sexuality and of violence incolonial society. These findings raise several considerations about using courtrecords—not only trials for sexual violence, but judicial records more gener-ally—as sources for understanding history.

Despite the variations in judgments, the production of Spanish colonialcourt records followed certain general patterns. In the secular criminal court

system, the local alcalde was usually the first official to hear reports and com-plaints from the public, often in the moments immediately following a crimeor crisis. In Guatemala City, neighborhood alcaldes functioned essentially as justices of the peace, circulating through their communities, often accompa-nied by a small group of patrolmen—in approximate terms, the beat cops of


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the colonial period. These urban patrols typically would report cases within amatter of hours to the criminal court, having already taken into custody any

suspects who could be found. In small towns and in the countryside, it couldtake longer for a complainant to get to the nearest alcalde or corregidor , andit might be weeks before the case arrived in a formal court, if it arrived at all.Typically, rural authorities tried to resolve issues locally, apparently main-ly through executive rule (with relatively little recorded processing), beforeturning to the courts in the capital or nearest city. Thus, the judicial archivesof the Audiencia contain relatively few cases from rural areas.

Criminal trial records usually open with a notary’s summary of the al-calde’s oral report to the court. Civil lawsuits begin with a grievance filed bythe plaintiff; for all but the most literate of appellants, these petitions were written up by the court’s notary on duty. The colonial state employed magis-trates who acted as inquisitors or questioners, and the notaries penned the re-sponses. Usually, rulings were issued by a presiding judge or board of judgesafter they read the written case record. Occasionally, the parties to civil suits were subpoenaed for a careo , a face-to-face hearing of both parties before the judge, though their testimonies in these cases were not transcribed.

Although the notaries sometimes merely summarized the oral testimonies,

the deposition records tend to contain impressive amounts of detail. State-ments filed in civil lawsuits opened in a standard format, announcing thecomplainant’s name, town or country of origin and residence, and the words“appear before Your Mercy and say,” followed by a petition worded in the firstperson. Elite litigants often signed their names, and a few apparently wrotetheir petitions in their own hands, but other petitions closed with the words“I don’t know how to write,” and were signed by the court’s notary or theProcurator for the Poor. In criminal cases, depositions were normally record-

ed in the third-person voice. Nevertheless, many appear to be blow-by-blowdescriptions of testimony, including (rendered in the third person) the verbalhesitations, vacillations, and repetitions of the speakers—both questioners andrespondents. Deposition records were often written in diction specific to thegender or social class of the deponent, suggesting that at least parts of the textclosely replicated the speaker’s words. In some passages, the notary’s marksindicate that the speaker was replicating a previous conversation. Visually, thepages containing judicial testimony normally show signs of very hurried pen-manship, and the notaries’ often-incomplete notations and scribbled emenda-tions further give the documents a sense of raw immediacy.

How does sexual violence appear in the court records? In the archivesfrom colonial Guatemala, what is most striking about sexual violence is howrarely it was reported. Although the majority of criminal trials were indeed


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for violent crimes (notably stabbings, homicides, and muggings), there wereremarkably few trials for sexual violence. In a random sample of over three

hundred court cases from 1770 to 1821, only five were for sexual assaults. Intwo additional cases, the women successfully fought off their assailants. All ofthe attacks were by men against girls or women. All were in the capital—ei-ther Santiago (today’s Antigua Guatemala, the city ruined by the 1773 earth-quake, which remained the official capital until 1778), or Guatemala City.6 In addition to the cases I consider in this article, several juridical records fromthe same period document sexual violence against slave women, who appearas the plaintiffs. However, these cases are quite distinct from those involvingassaults against free women, largely because the enslaved victims were de-manding liberty or payment, rather than penal sentences against the aggres-sors. Significantly, I found the slave women’s suits not in my random sam-pling of court records, but rather in a separate search of records specifically onslaves. I have written about these instances elsewhere (Komisaruk, ch. 2).

Also notable in the criminal trial records for sexual violence is the absenceof the words violar (to rape) and violación (rape). These words existed inthe eighteenth-century Spanish dictionaries, but the definitions don’t quitematch today’s meanings. Violar was glossed as “to forcibly corrupt a woman,

especially a virgin” (Real Academia).7 There was no word that conveyed to-day’s sense of violación —forcible sexual intercourse with someone who hasnot consented or is unwilling.8 Such a concept appears to have been absentfrom colonial judicial thinking. Like their contemporary lexicographers, theGuatemalan judges emphasized virginity in the victim and “corruption” asnecessary to constitute a punishable crime. While plaintiffs in the cases I haveidentified sometimes charged that a man had “forced” them, the courts didnot give substantial consideration to questions about women’s consent or will

in sexual acts. Instead, the judges tended to focus on other issues.

THE COURTS ON DEFLOWERING

In the trials for sexual assaults against young victims under marital age, the judges’ concerns centered primarily on deflowering, sometimes labeled bycontemporaries as “estupro” (from the Latin stuprum , literally “disgrace” or“defilement”). Estupro was understood specifically as an act of sexual inter-course with a virgin, regardless of her willingness or lack of willingness in the

act. I have identified three such cases; in each, an adult male was tried forsexual relations with a girl aged eleven or twelve. In all three trials, the courtfocused on bodily evidence of deflowering.

The criminal proceedings against Julián Vargas, age thirty-four, illustratethis focus (AGCA Sig. A2.2/leg. 165/exp. 3271). The victim was twelve-year-


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old Manuela Dorotea Valladares, an orphan who had been placed in the care ofVargas and his wife. Valladares’s brother, a sixteen-year-old apprentice weaver,

brought the charges to the authorities in the capital city in 1789. ManuelaDorotea Valladares testified that she was awakened one night from sleep “andfound herself with Julián on top of her . . . dispossessing her entirely of hervirginity with no possibility for her to impede him, nor to shout, because eventhough she tried, he succeeded in muffling her mouth, threatening that if shedid resist he would punish her, or kill her.” Valladares had been sharing a bed with Vargas’s wife’s niece, fourteen-year-old María Dolores Ubeda. Valladaresexplained that because of her attacker’s threats, she “had no other means thanto use her elbow to signal María Dolores, who was at her side, to go alert heraunt to what was occurring, or to shout, but her signals were not understood,and for this reason she could not avoid the damage that then happened toher.” Although Ubeda was an eyewitness, the court spent little time hearingher testimony. The record merely says she confirmed that her uncle JuliánVargas had been in the room that night without a shirt on.

Without further questioning about the assault itself, the judicial officialsfocused on finding evidence of deflowering. The court subjected the twelve-year-old Valladares to two examinations of her vagina, by a professor of sur-

gery and midwife respectively. The idea was that their observations wouldindicate the guilt or innocence of the accused man. This legal procedure ap-parently descended from the ancient fueros (laws) of Castile, which requiredthat a rape victim who had been a virgin must submit to an exam by “bonasmugeres” (good women) to prove the commission of the crime (Asso del Ríoand Manuel y Rodríguez, Libro II, Titol II: 66-67; Burns 1426, n.1). In thecase of Manuela Dorotea Valladares, both of the expert witnesses declared with certainty that the child “suffered an injury to her virginity” ( padeció

lesion en su virgindad —apparently the words of the notary). The surgeonsigned a declaration that there had been “true estupro,” and the midwife saidthat she had found the person of Manuela Dorotea Valladares “entirely cor-rupt according to her experience in the long time she has been in practice asa midwife.” (Presumably, though, the midwife had little, if any, experiencecarrying out gynecologic exams of virginal women, since the women she hadattended were pregnant or giving birth.)

In any case, Julián Vargas was finally then imprisoned. Giving his deposi-tion in the jail, he admitted that he had found Valladares asleep and had pro-ceeded to have intercourse with her. He denied having threatened Valladares,saying she resisted him at first but then gave in as he persisted. In the writtenrecord, Vargas told of his misdeeds with alacrity. He described arriving homearound 10:00 p.m.,


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drunk on aguardiente . . . and went to sit on the dais where Dorotea and anothergirl named Dolores were sleeping, and seeing that Dorotea was completely uncov-ered, he was excited by the view he had of her . . . and went over to her and hetouched her carnally. She resisted at first but it didn’t matter because he continued,and overwhelmed her, and when he was finished he got up and went out to the pa-tio to pee, and heard his wife calling him because he was taking so long.

Notably, Vargas contended that “estupro did not occur, since he found hercorrupted.” This statement (which Vargas made without the presence of legalcounsel) suggests that popular understanding paralleled the law and its em-phasis on deflowering.

Indeed, the depositions of Vargas’s wife and a neighbor woman echo theconcern with evidence of defloration to substantiate a wrongdoing. The wifehad been awake in bed that night waiting for her husband, and she grew sus-picious when he seemed to dally before coming to join her. When he finallygot into bed, she later said, “there were signs that she noticed in his under- wear.” She told the court that she had called the following day on her neigh-bor, an elderly widow “who examined the girl with all prudence, and eventook note of her nightclothes and the place where she had been sleeping, tosee if there was any sign to show damage to her honesty [i.e., virginity].” Theneighbor herself testified that she hadn’t found “the slightest indication that would affirm what was feared could have happened.” That is, she didn’t seeany blood on the child’s body or nightclothes, which would have been evi-dence of deflowering. The neighbor was implying either that Vargas had nothad sex with María Dorotea Valladares, or perhaps that Valladares had notbeen virginal beforehand.

The court determined that Vargas should be released from jail, based onthe judge’s opinion that the prisoner had already served enough time. On the

one hand, this ruling was typical of the colonial courts, which usually did notissue explicitly definitive verdicts of guilt or innocence, but rather tended to weigh the various factors and to formulate sentences seeking some balance of justice. On the other hand, though, the judge’s estimation of sufficient prisontime seems remarkably short. It had been only five months since the crime was reported—not an especially long period by standards of the era, in whichsuspects normally remained jailed during their trials.

However, the judge also sentenced Vargas to pay the legal costs and twen-

ty-five pesos in damages, presumably for the benefit of Valladares. If he evermade the payment, though, it was not registered in the record. The twenty-five pesos would have been a significant but not impossible sum for Vargas, who identified his occupation as barber and his calidad (race or ethnicity) asmestizo. His wife, whose ethnicity is not identified in the record, was known


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by the moniker “Cohete” (literally, Firecracker), suggesting that she or herrelatives may have been in the business of making or selling fireworks. This

couple, like the victim and her brother the apprentice weaver, appears as partof Guatemala City’s large stratum of economically middling artisans.The sentence for Vargas to make this payment reflects aspects of both re-

ligious and secular legal theory. Canon law required a man convicted of estu-pro either to marry his victim, or to provide a dowry for her “according tohis circumstances and faculties” and to be subjected to banishment or prison(Enciclopedia 239–40). The thought of having to marry one’s rapist is diffi-cult to ponder from our modern standpoint, but a key point here is that estu-pro was not necessarily rape—i.e., it was not necessarily forcible. Rather, theconcept of “estupro” included any sexual intercourse with a virginal woman, whether or not she was willing. Probably in the majority of cases, estuprosimply amounted to pre-marital sex between two willing partners. Churchdoctrine in effect allowed pre-marital sex, provided that there had been apromise of marriage (“palabra de casamiento”); it was the carnal knowledgeitself that the church held to be binding (Lavrin, “Introduction” 4–6). Thus,the law provided a recourse for women whose fiancés had sex with them andthen refused to marry them. As historiography on several other regions in co-

lonial Spanish America has shown, women used this legal feature to bring suitfor dowries against men who had impregnated and then jilted them.9 At leastin theory, the option of marriage that religious law gave to the man convictedof estupro would take into account the woman’s wishes, since clerics weresupposed to establish each person’s free will before performing a marriage.

Secular law had been a bit tougher on men who committed estupro, par-ticularly those who had used force. We can see this in the Siete Partidas , themassive seven-part compendium of laws compiled in the thirteenth century by

King Alfonso X. Alfonso’s code continued to provide a major foundation for judicial thinking throughout the colonial period in Spanish America; juristsin Guatemala sometimes cited it in their decisions. Regarding estupro, theSiete Partidas stipulated that a man who had used force should lose his life,and the woman should get his property. If he had not used force, half of hisproperty was to be forfeited to the crown; if he had no property, he was to bescourged and banished, or if he was a servant or slave, to be burned (Alfonso X, 7a Partida, Título XX, Ley II: 472–73). In practice, however, the colonial

courts were less harsh in their sentencing. Their inclination not to punish menfor estupro was codified in an edict in 1796, when the crown decreed “that theaccused men in cases of estupro should not be harassed with imprisonment.”However, the text of the decree itself noted that it was made in response torepeated “appeals”—evidence that men were in fact being imprisoned for


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estupro (Novísima Recopilación , Tomo V, Libro XX, Ley IV: 427). These mayhave been the boyfriends in consensual premarital sex cases reported by disap-

proving parents. The case against Julián Vargas was different, and the Guate-malan court at least recognized that complete leniency should not apply. As in the trial of Vargas, in the other two cases I have identified of men

accused of having sex with adolescent girls, the court also emphasized de-flowering rather than force, even though the victims’ testimonies indicatedthat they had been unwilling. In a 1775 case, twenty-two-year-old FranciscoPaula Guerra was tried in Santiago (now Antigua Guatemala) “for incest,”apparently having raped the eleven-year-old niece of his late wife (AGCA Sig. A2.2/exp. 154/leg. 2976). The child’s mother had brought the charges. Shehad learned of the event when she found her daughter, Ciriaca (no surnamerecorded), with blood on her clothes.10 Ciriaca testified that while her motherhad been out doing errands in the plaza, “her uncle Francisco grabbed heralone in the kitchen and laid her out, and forced her, without her being ableto prevent it.” Francisco seemed to blame Ciriaca, contending that “the girloffered herself to him,” although when the court asked Ciriaca if she had con-sented voluntarily, she said “no.” The defense attorney assigned to Franciscosought to cast doubt upon Ciriaca’s testimony, and called for a surgeon to

examine the girl. For reasons that are not stated in the record, no surgeon ormidwife testified. It may have been because the trial had been delayed, andFrancisco’s attorney was urging the court to release him. The defendant hadapparently been in jail for over a year—an exceptional waiting time, perhapsresulting from the disorder following the 1773 earthquake.

Still, the judge highlighted his concern with bodily evidence of deflower-ing as substantiation of the crime. “In the absence of the appropriate verifica-tion from the body,” he wrote, and without any other proof besides the depo-

sition of “the girl herself [who is] of such tender age, and that of her mother,”the defendant was to be sentenced to time served and one month of service onpublic works projects, and the court costs. The month in public works may in-dicate that Francisco, a widowed mestizo hat maker, was judged unable to paya settlement to the victim. It is also possible that the court was unconcerned with reparations to the victim because she was from a family of middling so-cial status at best. Ciriaca’s mother was described by the alcalde as a “negrita”(black woman); the mother was married but her husband’s ethnicity was not

recorded, nor were their occupations. In contrast, in the trial of Julián Vargasthat we have seen above, the victim Manuela Dorotea Valladares was identi-fied as “española”—Spanish, i.e., of European descent. The laws of the SietePartidas did specify a lesser punishment for a man who violated a woman who was not of “good reputation,” although the greater punishment was supposed


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to apply if the woman were a widow or virgin, regardless of her social rank(Alfonso X, Título XX, Ley III: 474–75).

The third case was tried in 1803 in Guatemala City (AGCA Sig. A1/leg.4400/exp. 36140). Gaspar de los Reyes, a man about forty or fifty years old, was charged with rapto of eleven-year-old María Ignacia Telles. (“Rapto”—from the Latin raptus , literally meaning tearing away, or carrying off—referredto the abduction of a girl or woman from her proper guardians, presumably with the intent of having sex with her.11) The child’s mother, Petrona Telles,had come to the neighborhood alcalde, saying that an “Indian man who isone of those who hauls [wheat in the city] named Gaspar . . . had taken herdaughter by trickery off into the [wooded] part of her house-lot, and that when she realized the girl was missing, they looked for her, and they foundher all muddied, and the Indian lying under a tree.” Gaspar de los Reyes wasknown to the household, as Petrona Telles had been giving him lodging tosleep in the kitchen. When the alcalde questioned the child, she told him “theIndian told me to say that I had to go answer a bodily call, and under a tree hethrew me down, covered my mouth, and did dirty things to me.”

Again, the court focused on deflowering. A midwife was called to do anexamination, and declared that the “child has a torn membrane.” But the

authorities worried about “the fallibility of the midwife’s conjecture as tothe injury to the girl’s integrity.” They subjected the child to examination bya doctor. The doctor’s report, recorded in his own handwriting, is a verbalmonument to the obsession with bodily details of deflowering. Among othererrors, the doctor was looking for “a hemorrhage or at least some bloodshedproportionate to the degree of violence,” even though he was examining thechild more than a month after the alleged assault! His final opinion was ad-mittedly equivocal: “I cannot say with assurance whether she is or is not a

virgin, but I can say that on the present occasion, María Ignacia de Telles hasnot suffered a deflowering or estupro, that is what it seems to me.”Besides this fleeting allusion to uncertainty by the doctor, the various trial

proceedings never seemed to acknowledge that a physical examination wasnot a reliable indicator of virginity. Rather than defining virginity as chastityin one’s sexual history, the court effectively viewed virginity as a (uniquely fe-male) physical state, one in which the hymen was intact. (The note in the trialof Julián Vargas—that Manuela Dorotea Valladares “suffered injury to her

virginity”—even suggests the equation of virginity with the hymen itself.) The judicial process seems to have been unable to address the range of realistic pos-sible scenarios—such as the tearing of the hymen in a non-sexual activity likehorseback riding, which was an important form of transportation. The juristsalso apparently ignored the possibility that there would be no visible bleeding


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even in case of estupro, or that a victim of rape would clean her body or cloth-ing to rid herself of residue of the attack.

The defendant Gaspar de los Reyes vehemently denied having had sex with María Ignacia Telles, either by force or seduction. Nevertheless, thecourt sentenced him to twenty-five lashes at the public whipping post in ad-dition to the prison time already served—just under two months. The judgegave little explanation. Apparently the punishment was meant to cover allbases in a case with no clear verdict.

The condemnation to whipping was almost certainly linked to de losReyes’s low social and ethnic status as a tributary Indian. For all sorts of crimes,ancient and medieval legal codes prescribed distinct punishments for convictsof distinct social ranks, and the Guatemalan colonial courts also made suchsocial distinctions in sentencing, although they did not closely follow codi-fied laws. Recall that the Siete Partidas stipulated that a man of means con-victed of having intercourse with a virgin without using force should lose halfof his property to the crown; a poor man “should be whipped publicly, andexiled on some island for five years.” Slaves (sieruos ) and household servants(sirvientes de casa ) fared even worse in this law, as they were to be burned (Al-fonso X, Título XX, Ley II: 472–73). The trend in the early modern period

was away from the death penalty, as codified in the Novísima recopilación delas leyes de España (Newer Compilation of Spanish Law) of 1805, which sub-stituted prison time for capital punishment even for rapists who had usedforce (Castañeda 46–47). In late colonial Guatemala, judges acted with ameasure of benevolence, as they shied away from capital punishments for anycrime, although sentences of whippings do appear with some frequency, andthere are occasional banishments. Corporal punishments were pronouncedfor both men and women, but only for people of low and medium-low social

status.

OBLITERATING FEMALE WILL, OBLITERATING FEMALE NARRATIVES

At a more basic level, the colonial Guatemalan jurists departed from earlymodern Iberian legal ideology not only in determining punishment, but alsoin defining crimes. Whereas early modern law had made a clear distinctionbetween consensual and non-consensual sex, eighteenth-century law and thecolonial courts did not always do so. Title XIX of Alfonso’s Seventh Partida

deals specifically with men who had sex with women “by deceit or by trick-ery, without using force.” Title XX, on the other hand, is a separate treatment“of those who force, or abduct” women. (Notably, Title XX limits the scopeof victims of force to include only “virgins, or nuns, or widows who live de-cently,” and married women who are added in Title XX, Law I.) In contrast,


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the 1796 royal decree relieving men charged with estupro from imprisonmentmakes no distinction between consensual and forcible sex. And indeed, the

Guatemalan courts tended to blur this distinction.In all three of the trials described above, the victims articulated that theassaults had been unwanted, and that they had tried to resist. But the courtfocused instead on deflowering, in effect obliterating the juridical role of thevictim’s consciousness or will. Girls’ bodies—the appearance of their hy-mens—thus had greater evidentiary and legal status than did the narrativesof their experiences. This may have been because the victims were children.(Indeed, modern laws recognize the inability of a young person to give a validconsent to have sex.12) Perhaps it seemed easier to the court to prove deflow-ering than to prove the use of force, given the popular belief that there wouldbe physical evidence of deflowering; a judgment about force or consent, incontrast, would have involved weighing one person’s word against another’s.In cases of young victims, the focus on deflowering was perhaps logical forsubstantiating the crime of estupro. But the colonial courts essentially limitedtheir prosecutions for sexual violence to cases where the victims had been veryyoung and presumably virginal. In effect, judicial practice treated sexual as-saults as criminal only if the victim had been a virgin.

Sexual assaults against other women were not viewed in the same criminallight, if they were viewed as assaults at all. Other than “estupro,” rape seemsnot to have existed in the judicial system. In the hundreds of court records Isampled, not one named violación (the closest Spanish equivalent to “rape”)as the crime. Only two trials appear based on charges that seem essentiallyequivalent to rape, although they used words other than violación . Signifi-cantly, in both cases the court ultimately dismissed the charges.

The first instance, occurring in 1798, was labeled by court personnel as a

trial for charges “against don Josef Melchor de Ugalde for having forced Mi-caela de los Santos” (AGCA Sig. A2/leg. 188/exp. 3798). Both plaintiff and jurists used the term “force,” which seems to evoke the Siete Partidas’s cata-loguing of punishable offenses. But in dismissing the charges, the court in ef-fect negated that the act constituted a crime. The plaintiff, María Micaela delos Santos, was an Indian widow in her early twenties from the community ofCiudad Vieja, just outside the capital.13 Santos had been serving as a wet nursein one of the city’s Spanish households. The accused assailant was the mis-

tress’s young brother. The day after the alleged attack, Santos sent word to herparents, who came to take her home. Her father brought the charges, in a pe-tition made the day they picked her up and penned in the telltale style of na-tive notaries. (Presumably, the father had appealed to the Indian governmentof Ciudad Vieja, which then forwarded the petition to the Spanish court.)


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A few days later, Micaela de los Santos returned to the capital to testify.She charged that the injuries she had suffered during the assault were so severe

that she had been unable to walk home with her parents, and they had to hirea horse. Indeed, the notary made the point that her father had brought her tothe judicial offices on a litter (silla de manos ). She described how a drunkenUgalde had grabbed her while her employers were napping one Sunday af-ternoon. Two other servants saw what was happening, and Santos tried toget them to alert the employers, but to no avail. She charged that Ugalde hadpulled her through the house into a room removed from view of the other ser-vants and hurled her onto the floorboards, bruising her and “splitting open”her hip; and then he “made use of her person carnally,” even as she pleaded with him and tried to resist physically. She said that “after he finished he toldher that if she wanted fruit, or bread, she should go ask him for it.”

When the magistrates asked her why she had not complained of the as-sault to her employers, Santos answered that her master had been “very ill-tempered, and she feared that he would kick her.” Further, Ugalde was knownamong the servants in the house for coercing or forcing girls and women intosex. Santos noted that a child servant named Cayetana

had told her that the boy [Ugalde] had done the same thing with another wet nurse. . . and he had given her four pesos. And even the mute girl [another servant in thehouse] asked [Santos], in her half-words, if [Ugalde] had embraced her, and [San-tos] said yes, and then [the mute girl] told her that he had done it to her four timesand then slept with her, and hadn’t given her even a quarter-real [i.e., not even apenny].

Santos’s deposition suggests a grim environment of sexual abuse, fear, anddisenfranchisement for the household’s workers. The servants were appar-

ently afraid to complain to the employers, or at least powerless even if theyhad complained, since the young man’s rampage of coercion and rape had notbeen stopped. Ugalde’s alleged sex acts with these women appear as part of aninsidiously hierarchical social fabric. If rape was a perversion of patriarchy andcolonialism—of men’s power over women, and of Spaniards’ power over peo-ple of conquered ethnic groups—then Ugalde’s alleged offers of trifling giftsappear a perversion of paternalism, as if he intended to pay or provide for thepeople he was exploiting. And aside from sexual abuse, these girls and women

were being exploited in the household (and in colonial society more generally)for their labor and milk. The few recorded details about the servants under-score their low social status within colonial society. Cayetana was working atthe tender age of nine. Though she knew her surname (she identified herselfas Cayetana Obregón), she was presumably either an orphan or the child of


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an impoverished family. She was likely receiving only a small wage beyondher food and a place to sleep, and if she was an orphan she probably was paid

no wages at all beyond her sustenance. Santos referred to her as “la china,”signaling that she was of Indian or partly Indian ethnicity. The other servant was identified by Santos as being “mute.” She was questioned as a witness andgave her name as Paula, but the authorities had difficulty understanding her;apparently she suffered a speech impediment or similar handicap.

Micaela de los Santos herself was spared some of these degradations; she was an adult, unimpeded in speech, with parents willing to help her, and as a wet nurse she was probably being paid a relatively high salary.14 But the otheraspects of her situation are bleaker: she had been widowed at a young age,presumably during pregnancy or shortly after her baby’s birth. The fact thatthere is no mention of her baby in the record gives the impression that eitherthe child had died, or she had to leave her/him behind in someone else’s care while she went to nurse an elite baby for wages (both scenarios were commonamong Indian wet nurses in Guatemala City). Wet nursing was an undesir-able task in this society; while the practice was widespread and women of anyethnic group might hire a wet nurse, it was only Indians, blacks, and mulatas who took the jobs. Wet nurses lost the ability to nurse their own babies ex-

clusively, or to grieve unmolested if their babies had died. And they invari-ably lived as servants—dependents—in the homes of their employers. Thedifference in social status between the servants and employers in the particu-lar household where Micaela de los Santos was serving was especially marked;the employers, doña Ignacia Zabaljauregui and her husband don SalvadorBarrios, as well as the accused rapist don Josef Melchor Ugalde, belonged toGuatemala City’s most elite Spanish circle.

In light of these circumstances, it is not really surprising that both Cay-

etana Obregón and Paula (the “mute” servant) kept mum when questionedby the authorities about misdeeds in their employers’ household. They wereboth still living there, after all. Cayetana denied knowing anything; in the re-cord she said merely “that it’s untrue that she is a witness since she hasn’t seenor heard anything, and if such a thing had happened, she would have told hermaster [i.e., employer].” Paula said “that it was all a lie,” and “that the boyPepe [Josef Ugalde] didn’t do anything.” Of course, it is possible that San-tos’s accusations against Ugalde were false, or that the part of her deposition was false in which she told of Cayetana’s and Paula’s stories of his other sexualexploits among the servants. But if her claims were true, the social circum-stances made it reasonable—even strategic—for the servants to keep quiet.

The defendant, don Josef Melchor de Ugalde—evidently a youth, thoughhis age was not recorded—denied the charges. He claimed that he had not


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beaten or forced Santos, alleging rather that her injuries resulted from hav-ing fallen off the horse, drunk, on her way to Ciudad Vieja. He argued that

because the house was small, it would have been impossible for him to have“forced lewdness” upon her without alerting the other servants.The court evidently made no effort to question either the servants or

Ugalde further. The brevity of the recorded depositions of defendant and witnesses is especially glaring in comparison with other trials from the sameperiod in Guatemala, in which magistrates often harangued deponents whosestories didn’t add up, reprimanding them and pressuring them to confess orchange their story. No such scolding appears in the testimonies of CayetanaObregón, Paula, or the defendant don Josef Melchor Ugalde. Rather, thecourt moved quickly to a decision. Only one day after Micaela de los Santoshad testified, a judgment was issued by the asesor —the jurist charged withadvising the alcalde. (While colonial law charged the alcalde with both judi-cial and executive authority, the alcaldes in Guatemala City usually simplyfollowed the judgments of the asesores who were, unlike many alcaldes, typi-cally trained as lawyers.) “There is no evidence against don Melchor Ugalde,”the asesor wrote, “beyond the declaration of the woman who says she wasforced. She surely is not married and because she is a wet nurse, it presum-

ably is the case that it wouldn’t be necessary [i.e., difficult] to force her, andtherefore it seems to me, that you should absolve the litigation and informthe plaintiff, who says he is the father of the one who was forced, that there isno merit for the prosecution.”

The judgment is troubling on multiple levels. The asesor was assuming(apparently not having read the statement of her marital status in the record)that Santos was not married; that she had become a wet nurse by having extra-marital sex; that therefore she was essentially available sexually to anyone;

and thus Ugalde could have sex with her without forcing her. Implicit here isthe asesor’s idea that a woman who had previously had extramarital sex was willing, indefinitely, to have sex with any man at any time, and therefore bydefinition she could not be forced. This notion seems to have been endemicamong the society’s judicial personnel; we will see it again below.

At least someone involved in Santos’s case was attuned to the fact thatthe asesor had ignored her civil status as a widow. It took over three weeks,but the alcalde finally came back to the record and jotted down a quibbleabout the asesor’s oversight. Likely Santos or her father or their attorney(the public prosecutor) had noticed the error and brought it to the alcalde’sattention. The case was sent to one of the court’s other asesores, but he up-held the earlier ruling. “Regardless of Micaela de los Santos’s state of wid-owhood,” he wrote, “in a small house, in which there are at least four other


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residents besides Ugalde and Santos, it would have been very easy for her toavoid the violence, if she had wanted.” This asesor was following Ugalde’s

own line of self-defense, implying that either Santos herself had been willing,or that she was to blame for the rape. Further, he cautioned the alcalde to dis-courage similar complaints in the future: “because similar suits should not befomented, or given a place, you should rule as [the previous asesor] has sug-gested.” And indeed this was the final ruling recorded in the case.

Thus, in the end, the magistrates held Micaela de los Santos responsiblefor the sexual assault. In the wording of their statements, the jurists recog-nized that there was “violence” and that Santos was “forced.” Yet they mar-shaled tautological arguments to insist on her culpability; the first asesor as-sumed that women who had previously had illicit sex were necessarily always willing to have sex with anyone, and the second asesor contended that thesexual act would not have happened if she had wanted to avoid it. The factsthat she had gone through the difficult process of filing charges, and thatthere was no apparent motive for her to have done so untruthfully, did notfigure in the court’s disposition.

A second trial for charges that amounted to rape—a double rape, infact—was documented in 1808 (AGCA Sig. A1/leg. 4435/exp. 36958).15

As in Santos’s case against Ugalde, in the double rape case the court ratherquickly closed the trial, ruling in favor of the defendant based on hearsaythat the alleged victims were married and/or living in informal unions withother men. The trial began in Guatemala City, when María de Guadalupe Alvarez reported to the neighborhood alcalde that Pedro Advíncula Bolañoshad “attacked her violently and consummated a carnal act.” And she said hehad then done the same thing to another woman in the same house, MaríaBeltrán. Apparently, both Alvarez and Beltrán had been living in the kitchen,

presumably working in exchange for their lodging. The alcalde then ques-tioned Beltrán, who told him “the same thing.”Interrogated in the jail, Pedro Advíncula claimed that Alvarez’s charges

were false, calling her “a vulgar woman.” As for María Beltrán, Advínculaadmitted to having “amistad” (a euphemism for illicit sexual relations) withher, but insinuated that it was by mutual consent, and said it had ended. Thecourt examined three other witnesses. Two of these were a married couple,both hog-raisers from a nearby village who had been in town that day onbusiness and had called at the house. (The head of the household was Nico-lasa de Lara, known in the barrio as “Chuchito.” Though she did not state heroccupation in the record, it is tempting to think she was a maker of chuchi- tos —a Guatemalan variation on tamales—and hence would have been in themarket for pork.) The hog-dealers confirmed that Pedro Advíncula had been


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at the house, “somewhat tipsy but not drunk,” but they did not know aboutthe alleged attacks. They said they thought María Beltrán was married, but

they weren’t sure.The household head, Nicolasa de Lara, told the court that María de Gua-dalupe Alvarez’s testimony should not be believed. Apparently, Lara was an-noyed because Alvarez had received a male visitor at the house (not Pedro Ad-víncula). Lara believed the visitor was the father of Alvarez’s small son. “Hedidn’t stay long,” Lara said, and Alvarez “assured her that there was no im-morality; and that she would live alone, and she even said that she was mar-ried.” Despite these assurances, Lara apparently thought Alvarez was in illicitamour with the visitor. Lara insisted that Alvarez’s testimony “does not mer-it credit” because she had been living “in this illicit relationship” for abouttwenty years. Though she seems to have been eager to disparage Alvarez forher love life, when the magistrates inquired, Lara was unable to identify theparamour (or husband).

Immediately after Lara testified, some of the officials decided not to heartestimony from either María Guadalupe Alvarez or María Beltrán. The no-tary explained that it was not known where Alvarez was living. He assertedthat “it is not suitable to examine her [i.e., hear her testimony] now, and the

same applies with respect to María Beltrán, who, it has been stated, is mar-ried.” This is a remarkable dismissal—of both Alvarez’s charges and Beltrán’s. Apparently, the household head Nicolasa de Lara had swayed the officials.Lara’s assertion that Alvarez was not credible because she had been living inan informal union suggests an underlying idea that the woman’s honesty, lit-erally, was at stake in her sex life. Late colonial subjects sometimes spoke of“honestidad” (literally: honesty, purity) or “honra” (honor, chastity) beingdamaged in estupro or pre-martial sex, apparently using these terms to refer

to virginity; but Lara’s testimony suggests a notion that a woman’s verbaltruthfulness—the integrity of her statements—was destroyed if she had sexoutside of marriage.

Or perhaps what Nicolasa de Lara meant (or what the court officials be-lieved) was that a woman who had an unsanctioned sexual relationship wasthen necessarily responsible for any sexual act in which she had engaged,regardless of whether she had consented or was forced. This thinking in ef-fect would permit men to rape, since their victims would be blamed. There

would be no criminal trials for rape of women who were thought to havepreviously had illicit sex, since the rape would not be viewed as a crime. In-deed, this seems to have been the case in the period under study. Recall thatin the case that we saw against don Josef Melchor de Ugalde, the first asesor had erroneously assumed that Micaela de los Santos had previously engaged


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in illicit sex. On that basis, he dismissed her charges with the statement thatit “wouldn’t be necessary to force her”—that she was excluded as a potential

victim in the court’s definition of criminal force. Similarly, the trial againstPedro Advíncula was dropped when the court heard (and as we have seen,it was merely hearsay) that the plaintiff had previously had an unsanctionedsexual relationship.

The magistrates did make at least a gesture of seeking testimony fromMaría Guadalupe Alvarez. Overruling the notary, the jurists ordered theneighborhood alcalde to locate Alvarez and give her three days to justify hercomplaint. But when the court’s messenger went to look for Alvarez at thehome of Nicolasa de Lara, she wasn’t there. Lara told him that Alvarez hadleft “with her lover for Quezaltenango, where she always goes. . . . She hasbeen gone since she pressed charges against Pedro Advíncula.” Hardly sur-prising that Alvarez would have left Lara’s house. Lara and Advíncula wereapparently friends, and Lara had backed him when Alvarez reported that hehad raped her in Lara’s kitchen.

The authorities made no further effort to find María Guadalupe Alvarez.Instead, the judge ruled that Pedro Advíncula should be freed, and Alvarez,the plaintiff, should be sentenced to pay the legal costs, “because of not hav-

ing justified her complaint.” Thus, the punishment was given to the plain-tiff. Having filed the charge of rape, María Guadalupe Alvarez was blamed—based on the court’s assumption that her accusation was false, and/or that sheherself was responsible for the event. The displacement of responsibility ontothe rape victim reflects the popular notion that unchaste women and those ofbad reputation cannot (or are not allowed to) resist or refuse to have sex, andtherefore by definition cannot be raped. They have no free will in the matter.Indeed, both secular and canon law had codified this notion, as they defined

male sexual offenses as criminal specifically (only) if they were made againstvirgins, nuns, married women, and widows who lived “decently” (Alfonso X,7a Partida, Títulos XIX and XX: 472, 474; Brundage 144–45).

As for María Beltrán, the jurists also summarily dropped her complaintagainst Pedro Advíncula. They decided not even to hear Beltrán’s testimony,the notary said, “since it has been stated that she is married.” (Recall that thisstatement had been made by the hog-raisers, but they specifically added thatthey were uncertain. The record gives the impression that they didn’t knowBeltrán well.) Thus, officially the court dismissed the offense because the vic-tim was said to be married. Yet the laws did in fact prescribe punishment formen who forcibly raped married women. Perhaps in practice, popular under-standings viewed the rape of a married woman as a private offense and leftthe remedy in the hands of the husband. Indeed, both the Siete Partidas and


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subject to their masters’ powers (and that of their masters’ friends and rela-tives). As Sharon Block has shown for early Anglo America, masters’ power

could be used to create situations to force servants into sex (74).The courts’ dismissal of all counts of rape reported by these three adultvictims—Santos, Alvarez, and Beltrán—extends the same pattern that wehave seen in the trials for sexual offenses against children: the court deniedthe importance of female free will. The jurists’ handling of the cases gaveno role to women’s right to refuse sex. Instead, the court configured sexualcrimes as deflowering. The woman’s consent or non-consent did not playa role in this configuration. Rather, the courts defined the man’s deed ascriminal if he deflowered the woman; otherwise, he was off the hook. Fur-ther, Spanish code law in effect gave women of Spanish ethnicity and higheconomic status greater protection from sexual violence than it gave poorand non-Spanish women. In practice, the judicial system in late colonialGuatemala followed this differentiation. And the courts evidently affordedpoor and non-Spanish women even less protection if they were married orhad engaged previously in sexual relations. Thus, in cases of both child andadult victims—that is, whether or not the society presumed that defloweringhad occurred—the legal system in effect undercut rape survivors’ narratives.

The role of girls’ and women’s depositions about their rapes was obliteratedin the judicial process.

RETHINKING THE RECORD

In light of this legal climate, it would not be surprising that women chose notto report sexual assaults. Victims had little, if anything, to gain by report-ing such attacks, and they would pay a high personal price in the litigation

process. The girls we have seen were subjected to further degradation—firstin the physical examinations, and then in the semi-public discussion among witnesses and court personnel about whether or not they were virginal beforebeing assaulted. Only one of the three was awarded anything, and it is un-clear whether the settlement was ever paid. The families of unmarried girlsand women may have feared that reporting a rape would bring public hu-miliation, perhaps damaging the victim’s prospects for marriage.16 The adultplaintiffs we have seen—Micaela de los Santos, María de Guadalupe Alva-rez, and María Beltrán—were themselves put on trial, as their sexual histo-

ries and reliability (rather than the attackers’) were discussed and maligned.In effect, the colonial judicial process saddled rape survivors with a displacedblame for the assaults against them. For the three adult complainants in par-ticular, the trial amounted to a public denial, without real evidence, of theirviolation.


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We also don’t know how many women may have reported assaults, onlyto be dismissed by the legal officials even before a written record was gen-

erated. Nor do we know how many rape survivors dared not to report thecrime, for fear of punishment by their employers, their family members, ortheir rapists. Micaela de los Santos said she was afraid her ill-tempered master would beat her if she told him his young brother-in-law had raped her. RecallCiriaca’s mother, who brought charges that eleven-year-old Ciriaca had beenraped by an uncle. The alcalde who received the mother’s complaint notedthat she was afraid of her husband’s response: “she begged me by God, thather husband shouldn’t learn of this, because if he finds out he’ll want to killher, casting the blame on her.” (It is unclear to me whether the mother fearedhe would blame her or her daughter.) The child herself, when asked by theauthorities why she had not told her mother immediately of the assault, an-swered, “out of fear—she was greatly afraid that [the attacker] would punishher” (AGCA Sig. A2.2/leg. 154/exp. 2976). Twelve-year-old Manuela Doro-tea Valladares testified that her rapist Julián Vargas had warned her that ifshe shouted, “he would punish her, or kill her” (AGCA Sig. A2.2/leg. 165/exp. 3271). Even in modern legal systems, sexual violence, especially withinhouseholds, often goes unreported.

Our view of history is necessarily shaped by the records we have, andnecessarily limited where we do not have records. We can gain a clearer un-derstanding of both the extant record and its omissions by considering the ways in which the documents themselves were generated in a particular intel-lectual and political context. Colonial court documents on sexual offendersare products of contemporary mentalidades about sexual assault—how it wasdefined, who was seen as responsible—and of the judicial system, both legaltheory and actual practice.

Examples include the two remaining cases I have identified—both sug-gestive of sexual assaults, though less conclusive than those seen above. Thepoint here is that these two assaults surface obliquely in the records, in trialsgenerated by other charges. We can detect the assaults only by reading therecord carefully. In one case, a Santiago woman named Petrona Peralta hadrepeatedly tried to end an informal union with Pedro Nolasco Dávalos. Shesaid that she had even moved residences several times to try to escape him,but he persisted in finding her. When he showed up at her new lodgings onenight in 1777, she refused him: “she said what did he want, and hadn’t shetold him to leave her in peace?” Unwilling to accept no for an answer, Dáva-los “grabbed her and pulled her down, tearing her shawl, skirts, and blouseto pieces.” Peralta got away and went to seek help from the alcalde. Dávalos was tried not for assault per se, but for “relapsing concubinage.” In the court’s


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view, his attack on Peralta was displaced by his history of illicit (if not vio-lent) relations with her (AGCA Sig. A2.2/leg. 154/exp. 2997).

In an 1808 case in Guatemala City, a woman known as María Guitosuccessfully defended herself from an apparent assault by José Matías Leyva,a thirty-eight-year-old baker of “calidad pardo libre”—a free man of darkcomplexion. Evidently they too had previously had a consensual sexual re-lationship, but had broken it off. Then one day, Leyva got drunk and brokeinto Guito’s house. He himself later confessed that “burning with sensuality. . . he had some pretensions to make ill steps toward her.” But as he recalledit, she took “for her defense or vengeance a stick with which she beat him,”and he admitted “that he was so incapacitated with his intoxication that hecouldn’t succeed in anything.” Leyva retreated to his sister’s house, bleeding with his “head broken.” The case comes to light because the sister called theneighborhood alcalde and Leyva was taken to the hospital. The record wasgenerated as the beginning of a criminal trial, as it was officially document-ed in the record, “against María Guito, for wounding José Matías Leyva.”(Though the authorities ordered her apprehension, the record then ended.Leyva had recovered quickly, apparently more embarrassed than injured, andtold the court that he pardoned Guito. Apparently the charges against her

were dropped. She never testified in the record.) The “ill steps” that Leyvahad made were not addressed by the court (AGCA Sig. A1.15/leg. 4440/exp.37101).

In these two cases—of Pedro Dávalos and José Matías Leyva—contem-porary attitudes and the legal system identified an infraction other than sex-ual assault, and configured the story accordingly in the record. The trials were labeled and archived as “relapsing concubinage” and “injury against José Matías Leyva,” respectively. Both assaults are suggestive about circum-

stances of sexual violence that would not ordinarily have entered the histori-cal record—that is, cases where there would have been no collaboration bythe courts to document the case.

The Spanish American colonial courts presumably did not address mostsexual violence that occurred, and the archival record does not at first seemto yield much information. But it would be a mistake for historians to disre-gard or deny sexual violence just because the courts (and popular thinking)did so. Along with previous work on Guadalajara (Castañeda) and Costa Rica(Rodríguez Sáenz, “‘Tiyita’”), my sampling of court records helps identify ageneralized shortage of Spanish American court records on sexual violence.Moreover, it suggests that sexual violence is under-represented in the colonial judicial archives, and that the documenting of sexual assaults was probablydisproportionately weighted toward cases where victims were of premarital


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age. Further research is needed for us to better understand the role of sex-ual violence in colonial society, not only in Guatemala but also in Spanish

America more generally. A comparative study over a wider region of the em-pire might be one strategy to tackle the problem of scarce recording; anotherstrategy would be to survey a longer chronological period. Other promisingapproaches are the study of additional kinds of records, beyond those of thesecular courts. Records of the Inquisition and ecclesiastical courts may alsoprove fruitful.17

My analysis here has also shown that colonial social structure and legalthinking fundamentally framed those narratives of sexual violence that wererecorded. In terms of social order, perhaps the most significant factor was theenormous inequality of power between most plaintiffs and the judicial offi-cials who interrogated them and processed their cases. As for the role of legalculture, we have seen that the court depositions archived in Guatemala (andin Spanish America as a whole) contain only those details that the judicialpersonnel chose to record—only what those colonial officers believed was rel-evant to the cases they were processing. Thus, in the production of writtenrape narratives, the legal system compelled women’s collaboration in certainunderstandings of sexual violence. Either the victim’s social status and body

conformed to the narrow colonial notions of what constituted sexual assault,or her narrative would be unheard, unrecorded, or discarded. For those vic-tims who did not even come forward to report their rapes, and for those whomay have come forward but were then dismissed by local officials before acomplaint was recorded, the absence of judicial collaboration foreclosed theproduction and archiving of a narrative.

These findings point to new considerations about the ways that colonial-era thought, law, and record-keeping have structured our perceptions of the

past. As dominant colonial views effectively erased women’s free will from thecontemporary concept of sexual assault, rape was largely omitted from colo-nial archives. Analysis of this pattern in the production of written records (orrather, in the failure to produce written records) reveals an aspect of colonialSpanish American life that has been occluded in historical understandings.In the realm of the courts, the production and preservation of records werecontingent on a degree of collaboration between the judicial system and thecomplainant—on agreement, at least, that there was cause for a hearing. Butthe courts were largely unwilling to collaborate with victims of sexual vio-lence, even if these victims were willing to press charges and testify. In cases ofsexual violence where dominant social and legal ideologies did not recognizea crime or collaborate in the recording of victims’ testimonies, rape narratives were silenced—in the courts and in the historical record.


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NOTES

AUTHOR ’S NOTE: All translations are mine. I am grateful to Sharon Block, Kathleen McHugh,Omar Valerio-Jiménez, and the anonymous reviewer for their suggestions on earlierdrafts of this essay.

1. Among the numerous types of judicial records from colonial Spanish America are eccle-siastical hearings in appeals for divorce; Inquisition investigations and trials; civil suitsbetween spouses; paternity suits (for child support) in the secular courts; and criminaltrials. Examples of studies based on such records include Martínez-Alier, Marriage and“Elopement”; Taylor; Seed; Nizza da Silva; Gutiérrez, “Honor” and When Jesus Came ;Stern; Dueñas Vargas; Few; and Lewis.

2. Studies of rebellions include Taylor; Stavig; Thomson; and Van Young, The OtherRebellion . For studies of rebellions in Central America specifically, see Martínez Peláez;Contreras R.; and Van Young, “Augustín Marroquín.”

3. This literature is extensive for Spanish America; examples include Martínez-Alier; Seed;several articles in Lavrin, ed.; Stern; Chambers; Shumway; and, on the nineteenth cen-tury, Christiansen. For Central America, this scholarship has focused primarily on thenineteenth century; see Rodríguez Sáenz, Hijas and “Divorcio”; Palomo de Lewin; Jef-ferson ch.. 3; Few; and Ericastilla Samayoa and Jiménez Chacón.

4. Exceptions include Castañeda; and Rodríguez Sáenz, “‘Tiyita.’” Brief discussions of rape

are offered in Lozano Armendares 86–89; Chambers 211–13; and Lavrin, “Sexuality”71.

5. The research for this article is drawn from a broader reading of court records in the Archivo General de Centroamérica in Guatemala City (AGCA), which I did as part ofthe research for a larger study (Komisaruk). In the archive, the records of judicial casesheard by the Audiencia during this period are mixed together with those heard by thecity’s secular court, and indeed most of the cases heard by the Audiencia originated inthe capital city and its nearby hinterland. This abundance of cases from the capital citymay result from the concentration of population there, but it is probably also because

the difficulty of traveling long distances limited people’s access to the Audiencia. Thearchives convey a sense that the Audiencia often functioned, in its judicial role, as anadditional municipal court—albeit a higher court or a court of appeal, but neverthe-less a court that was largely serving the same population as the Guatemala City courtsdid.

6. The court records are classified in the AGCA under the signaturas A1.15 y A2.2, cata-logued for the period studied here in drawers 1–6 through 1–31 of the AGCA cardcatalogue ( fichero ). Because there are thousands of extant case records for the period ofmy initial study, I did not read all the cases for these years, but rather sampled them

essentially at random. I tended to choose those documents that had suffered less waterdamage and were therefore more legible, but these choices bear no correspondence tothe content or nature of the legal proceedings. A survey for sexual assaults based on thesummaries in the AGCA card catalogue or the cover pages of court cases would not bereliable, because many of these summaries do not accurately reflect the contents of thecases. Reading the whole case record is the only way to be sure of its content, and even


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then the accusations cannot always be characterized by a single infraction. The processesof trial and litigation involved declarations by alcaldes, plaintiffs, defendants, and wit-nesses, with arguments and questioning by attorneys and interjections by court person-

nel; juridical proceedings themselves often amounted to a form of social negotiation in which charges were filed and then revised.

7. The Spanish reads: “corromper por fuerza a alguna muger, especialmente doncella.” Onthe 1780 and 1803 editions of the dictionary, see Rodríguez Sáenz, “‘Tiyita’” 43 n.9.

8. The 2001 dictionary of the Real Academia defines violar as: “Tener acceso carnal conalguien en contra su voluntad o cunada se halla privado de sentido o discernimiento [Tohave carnal knowledge of someone against her/his will or when she/he is deprived ofconsciousness or discernment].”

9. For example, Seed; Twinam; and Socolow.10. The mother’s name was Flora Cortes; she was married to Vicente Machuca.

11. Rapto was often carried out with the cooperation of the girl, thus essentially amountingto an elopement. Typically it was a strategy by young couples to skirt the barrier of dis-approving parents. See Martinez-Alier, “Elopement”; Gutiérrez, “Honor”; and Lavrin,“Sexuality.”

12. In El Salvador, for example, the legal age of consent for sexual activities is 16; in Guate-mala, 18; in Honduras, 14. Sex with children below these ages is defined as criminal (see“Legislation”).

13. I use the term “Indian” to reflect the terminology used in the records (india/o), and tobetter reflect the complex range of both local and non-local native American identities inthe colonial Guatemalan context. Indians in Guatemala included not only descendantsof the native pre-conquest communities in the region, but also Tlaxcalans and othersof native Mexican ancestry—descendants of the Mexican groups who accompanied theSpanish conquerors on their arrival in Central America. The community of CiudadVieja, in fact, was of mostly Mexican ancestry; see Matthew.

14. Female domestic servants in Guatemala City in this period usually made about 2–3pesos per month, often in addition to room and board; see AGCA Sig. A2/leg. 185/exp.

3704 (year 1797, testimony of Felipa Véliz); Sig. A2/leg. 205/exp. 4191 (year 1803);and Sig. A1/leg. 2861/exp. 25923 (year 1790). In contrast, the standard salary for wetnurses was three or four pesos per month; see AGCA Sig. A1/leg. 154/exp. 3063.

15. The record was labeled by the court’s notary as a case “against Pedro Advíncula orBolaños (alias Bellota), for violence in the abuse of a single woman” (“Contra Pedro Advíncula o Bolaños [alias Bellota], por violencia en el abuso de una soltera”).

16. Rodríguez Sáenz (“‘Tiyita,’” 30, 40) notes that in cases of incest, families likely fearedstigmatization; some cases were brought to court only when the victim became pregnantand her sexual relationship could no longer be kept secret.

17. Rodríguez Sáenz (“‘Tiyita’”) surveyed both secular and ecclesiastic court records. In-quisition records have proven fruitful on other aspects of sexuality in colonial Spanish America; for example, in studies by Few and Sigal.


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